W.P. No. 15090 of 2016 - cdn.jagonews24.com6 W.P. No. 15090 of 2016 (Judgment dated 10.02.2020)...

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W.P. No. 15090 of 2016 (Judgment dated 10.02.2020)

In the Supreme Court of Bangladesh High Court Division

(Special Original Jurisdiction) Writ Petition No. 15090 of 2016. In the matter of: An application under Article 102 of the Constitution of the People’s Republic of Bangladesh. In the matter of: Mohammad Samiul Huq and another.

……. Petitioners. Vs.

Government of Bangladesh, represented by the Secreatry, Ministry of Home Affairs, Bangladesh Secretariat, Ramna, Dhaka-1000 and others.

…Respondents. Mr. Redwan Ahmed, Advocate

…For the petitioners. Mr. Md. Ruhul Quddus, Advocates

…For the respondent No.13. Mr. Shamsul Hasan, Advocates

..For the respondent No.14. Mr. Mirza Al Mahmood, Advocate ..For the respondent No.26.

Mr. Bepul Bagmar, D.A.G with Mr. Mohammad Nazrul Islam Khandaker, A.A.G with Ms. Tahmina Polly, A.A.G with Mr. Md. Salim Azad, A.A.G ..For the respondent No.3. Heard on 15.01.2020 and 22.01.2020 and 23.01.2020 judgment on: 10.02.2020.

SHEIKH HASSAN ARIF, J

1. At the instance of two learned advocates of this Court, Rule Nisi

was issued in this writ petition calling upon the respondents to

show cause as to why the inaction of respondent Nos. 1 to 12

(Government, Inspector General of Police, Police

Commissioners, Rapid Action Battalion and some Deputy

Commissioners) to take appropriate actions immediately for

preventing any sort of gambling in the name of indoor games, i.e.

Present: Mr. Justice Sheikh Hassan Arif And Mr. Md. Mahmud Hassan Talukder

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cards, Dice, Housie, Nipun Khela etc. which are played for

money, wager, stake or in other words risking money or

something of valuables for a chance to win such money, price or

other valuables by respondent Nos. 13-25 (Dhaka Club, Uttara

Club and some other Clubs) at their premises, should not be

declared to be without lawful authority, and as to why the said

respondent Nos. 1-12 should not be directed to prevent any sort

of gambling in the name of indoor games, cards, Dice, Housie,

Nipun Khela etc. by the said respondent Nos. 13-25 at their

premises and/or such other or further order or orders passed as

to this Court may seem fit and proper.

2. Back Ground Facts:

2.1 Facts, relevant for the disposal of the Rule, are that according

to the petitioners, respondent Nos. 13-25 (the said Clubs) are

reputed clubs in Bangladesh and they have been maintaining

common gaming houses at their premises for their members,

guests and others to play cards, housie etc. which come

within the definition of ‘gambling’ and as such prohibited by

the relevant provisions of the Metropolitan Ordinances

applicable to them as well as the relevant provisions of the

Public Gambling Act, 1867. It is stated that since the said

games, being cards and housie, are played for money, wager

or stake or risking money or something of valuable for

chance to win a prize, they are gambling, though some other

terms are used for them, and as such they are offences

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punishable under the provisions of Public Gambling Act, 1867

and different Metropolitan Ordinances of Bangladesh.

Therefore, it is contended by the petitioners that the said

clubs have been maintaining public/common gaming houses

as punishable under Section 3 of the Public Gambling Act. It

is further contended by the petitioners that Article 18 of the

Constitution of the People’s of Bangladesh categorically

prohibits gambling and a decision of this Court, as reported in

66 DLR-380, has already termed those games as gambling.

That while the Public Gambling Act has prohibited playing of

such gambling or maintaining gaming houses beyond the

metropolitan areas, relevant provisions of the Metropolitan

Ordinances have also prohibited such gambling in the

metropolitan areas. However, according to the petitioners,

while the respondent-law enforcing agencies and

administrations have been enforcing the provisions of the

Gambling Act beyond the metropolitan areas when such

gambling is played by poor people, they do not implement

such prohibition in respect of those clubs which are basically

run by rich people in metropolitan areas. Therefore, according

to the petitioners, the law enforcing agencies and

administration of the government have been adopting

discriminatory measures in implementing the prohibition of

gambling in Bangladesh which is violative of Article 27 of the

Constitution.

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2.2 It is further contended that the real victims of gambling are the

wives and children of the gamblers and they are the ultimate

sufferers of gambling played by those people and in those

gambling, most of the players lose almost everything and the

consequences are suffered by those innocent children and

wives of the gamblers. Therefore, it is stated, the petitioners

have come-up with this public interest litigation as the said

wives and children of the gamblers are not in a position to

come before this Court challenging such arrangement of

gambling and playing of gambling by those rich clubs in

metropolitan areas of Bangladesh.

2.3 On the above averments in the writ petition, a division bench

of this Court issued the aforesaid Rule. At the time of

issuance of the Rule, this Court, vide ad-interim order dated

04.12.2016, restrained those clubs by an order of injunction

from playing or allowing any sort of gambling at their premises

in the name of Cards, Dice, Housie, Wager, Nipun Khela etc.

which are played for money, wager, stake or in other words

risking money or something of valuables for a chance to win

such money, price or other valuables. At the same time, this

Court directed the law enforcing agencies and the

administration (respondent Nos. 1 to 12) to take appropriate

legal actions against anyone found at those premises playing

or allowing gambling in the name of indoor games, i.e. Cards,

Dice, Housie, Nipun Khela etc. within 24 (twenty four) hours

from receipt of the copy of the order. Respondent Nos. 3, 4, 5

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and 6 (Police Commissioners) were also directed to file

compliance of the said order through the office of the

Registrar General of this Court within 10(ten) days from the

date of receipt of the said order.

2.4 As against above ad-interim order, Dhaka Club Ltd., Uttara

Club Ltd. and Officers Club, Dhaka moved the Appellate

Division, whereupon the Hon’ble Judge-in-Chamber of

Appellate Division in the Leave Petitions preferred by Dhaka

Club Ltd. and Officers Clubs, Dhaka, being Civil Petition for

Leave to Appeal Nos. 3845 and 3873 of 2016, stayed

operation of the said ad-interim order passed by the High

Court Division. Subsequently, the Appellate Division, vide

orders dated 11.11.2016 and 09.01.201, allowed those stay

orders to continue till disposal of the Rule expeditiously by the

same bench of the High Court Division which issued the Rule.

Thereafter, since the presiding Judge of the bench which

issued the Rule retired, the Rule could not be heard as per

the said direction of the Appellate Division. Subsequently,

one Nutundhara Cultural Indoor Auditorium Ltd. added itself in

the instant writ petition as respondent No. 26 vide order dated

06.02.2017 passed by a different bench, and, on an

application by the said added-respondent No. 26, another

division bench comprising their Lordships Ms. Justice Salma

Masud Chowdhury and Mr. Justice A.K.M. Zahirul Hoque,

vide order dated 10.10.2017, directed the concerned

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respondents “not to interfere with or create disturbance to the

applicant, respondent No. 26, in his conducting of different

types of indoor games like cards, dice, housie, nipun khela,

raffle draw, one ten, one eight and other cultural programs etc

as conducted by other respondents at the project premises of

the applicant-respondent No.26 situated at Bhagerbazar,

Bhabanipur, Police Station-Joydebpur, District-Gazipur

without due process of law for a period of 3(three) months

from date.”

2.5 As stated above, with the retirement of his Lordship Mr.

Justice Quamrul Islam Siddique, the presiding judge of the

bench which issued the Rule, the Rule in this writ petition

remained unattended for by any one. Neither the petitioner

nor the respondents took any steps for hearing of the Rule

before any division bench of this Court in spite of the fact that

the Appellate Division, vide order dated 11.12.2016, directed

for disposal of the Rule within 08 (eight) weeks from the date

of reopening after the then ensuing vacation without allowing

any adjournment. Better late than never, the Appellate

Division has finally, vide order dated 30.10.2019 passed in

Civil Petition for Leave to Appeal No. 3845 of 2016, sent this

matter for hearing before this bench after reviewing its earlier

order dated 11.12.2016. Accordingly, we have taken up this

matter for hearing.

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2.6 The Rule is opposed by Dhaka Club Ltd. (respondent No. 13)

through Mr. Md. Ruhul Quddus, learned advocate, who filed

affidavit-in-opposition mainly contending that the respondent

No. 13-club is a company limited by guarantee and it is a

‘members only club’ and that it arranges indoor games like

cards and housie for its members regularly and those games

have become part of everyday social life for its members and

their families. It is further contended by this respondent that

these activities of the club are not meant for business, rather

they are for amusement purpose and they are mostly

sponsored by the club members. It is also contended by this

respondent that the said activities of the club do not come

within the mischief of Public Gambling Act or any other laws

of the country and that the provisions of Public Gambling Act,

1867 and the provisions of the Metropolitan Ordinances, as

referred to by the petitioners in the writ petition, do not have

any manner of application so far as the said club is

concerned.

3. Submissions:-

3.1 Mr. Redwan Ahmed, learned advocate appearing for the

petitioners, has made the following submissions:-

a) That the Constitution of the Peoples Republic of

Bangladesh, under Article 18 (2), has provided an

obligation for the State to take effective measures to

prevent prostitution and gambling. According to him, the

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framers of the Constitution have put ‘gambling’ along with

the term ‘prostitution’ in the Constitution to signify the

gravity of mischief which may be caused by the act of

gambling. Therefore, according to him, even in the

absence of any specific legislation in this regard, it is the

obligation of the State and the government machineries to

prevent gambling along with prostitution.

b) That although the Public Gambling Act, 1867 has not

specifically defined the term ‘gambling’, the definition of

‘common gaming house’ may be taken into consideration

to define the exact nature of gambling in addition to the

meaning given in reputed dictionaries in order to find that

the acts that are being committed or allowed to be

committed by the said clubs in their premises come within

the definition of ‘gambling’ and as such punishable either

under the Public Gambling Act, 1867 or under the relevant

provisions of the Metropolitan Ordinances.

c) That although Section 1 of the Public Gambling Act, 1867

has exempted the metropolitan area from the applicability

of the provisions of the said Act, each and every

Metropolitan Ordinance, by which the said metropolitans

were constituted, have incorporated specific provisions

prohibiting such gambling. This being so, according to him,

in addition to the specific provision in the Constitution, the

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legislature has also made provisions for prohibiting

gambling in any form. In this regard, learned advocate has

referred to the dictionary meaning of the term ‘gambling’

as provided in the Black’s Law Dictionary as well as

paragraph 13 of a reported case as decided by a division

bench of this Court earlier in Jafar Ullah vs. Bangladesh, 66

DLR (2014)-380.

d) That this Court has already, in the above referred case of

Jafar Ullah, declared that Nipun Khela including 1-10, 1-8

Dice and Housie are various forms of gambling, no matter

they are played for money, wager, stack or otherwise and

as such they are punishable. According to him, since this

declaration of law by the High Court Division is yet to be

interfered by the Appellate Division, the same is the law of

the land and as such even if there is no specific provision

in the Public Gambling Act, 1867 defining the term

‘gambling’, the respondents, under no circumstances, can

allow playing of housie, Nipun Khela etc. including cards in

different names in the premises of those Clubs or any

other common gaming houses or public places.

3.2 As against above submissions, Mr. Md. Ruhul Quddus,

learned advocate appearing for the Dhaka Club (respondent

No. 13), has made the following submissions:

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a) That the petitioners do not have any locus standi to file this

writ petition and that this writ petition does not come within

the purview of public interest litigation.

b) That the respondent No. 13-club does not play cards,

housie etc. in the club premises for money or for any

valuable or stakes, rather they play them for amusement

only.

c) That Section 1 of the Public Gambling Act, 1867 has

categorically exempted applicability of the provisions of the

said act to the metropolitan areas including Dhaka

Metropolitan. This being so, the definition as well as the

prohibitions provided by the said Act will not apply to the

Dhaka club and other clubs within the metropolitan area.

d) That even if the said provisions are made applicable,

Dhaka Club Ltd., or the clubs similar to Dhaka Club, are

not common gaming houses, as defined by Clause-(c) of

Section 1A of the Public Gambling Act, 1867 and that

Dhaka Club is used for many other sporting events like

crickets, billiards, chess etc. and as such the same cannot

be termed as ‘common gaming house’ as defined by the

said Act.

e) That Dhaka Club is not a public place either. Rather, it is a

‘members only club’ and only the members have access to

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the said club. Therefore, Section 92 of the Dhaka

Metropolitan Ordinance does not apply to Dhaka Club.

3.3 Mr. Bipul Bagmar, learned Deputy Attorney General present

in Court, submits that he does not have any instructions for

opposing the Rule. However, he submits that the government

has recently taken serious initiatives for stopping any sort of

gambling in the country and metropolitan areas, and has

launched different drives in different Casinos that are run in

clubs and arrested the people concerned who were the

masterminds of those Casinos. Therefore, according to him,

the present policy of the government is to discourage or stop

any sort of gambling in the country.

4. Deliberations, Findings and Orders of the Court:

4.1 Before addressing the respective cases of the parties, let us first

try to find out as to what is meant by the term “gambling”.

Admittedly, the Public Gambling Act, 1867 has not provided any

specific definition of the term ‘gambling’. However, Clause (c) of

Section 1A of the said Act has provided definitions of gaming,

instruments of gaming and “common gaming house” in the

following terms:-

“gaming” includes wagering or betting….

..............................………

“instruments of gaming” includes any article used as a

means or appurtenance of, or for the purpose of carrying

on or facilitating, gaming; and

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“common gaming house” means any house, room, tent,

or walled enclosure, or space, or vehicle, or any place

whatsoever, in which any instruments of gaming are kept

or used for the profit or gain of the person owning,

occupying, using or keeping such house, room, tent,

enclosure, space, vehicle or place, whether by way of

charge for the use of such house, room, tent, enclosure,

space, vehicle, place or instruments or otherwise

howsoever.

4.2 Sections 3 and 4 of the said Act of 1867 have made it punishable

for the persons who are owners, occupiers etc of all such gaming

houses and gets profits for maintaining such gaming houses, the

punishment being very nominal like a fine not exceeding two

hundred taka or imprisonment not exceeding three months.

Lesser punishments are provided for players of such gaming.

Section 6 of the said Act has further provided that if cards,

gaming table, boards etc are found in any house etc., it shall be

an evidence that the persons found therein are present for the

purpose of gaming. On the other hand, keeping any office or

place for the purpose of drawing any lottery, not being authorized

by government, is an offence under Section 294A of the Penal

Code 1860.

4.3 Now, since the legislature has not defined the term ‘gambling’

specifically, we have taken recourse to a reputed law dictionary,

namely Black’s Law Dictionary [Eighth Edition, Bryan A.

Garner] wherein the term ‘gambling’ has been defined in the

following terms: “The act of risking something of value, esp.

money for a chance to win a prize”. The same dictionary has

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also defined “gambling device” as anything such as cards, dice

or an electronic or mechanical contrivance, that allows a person

to play a game of chance in which money may be won or lost.

Again, according to that dictionary, ‘gambling place’ means any

locations where gambling occurs.

4.4 Superior Courts of this sub-continent have time and again come

across with the situations where they had to define the term

‘gambling’. The Indian Supreme Court, in KR Lakshman vs.

State of TN (1996) 2 SCC 226, has defined the term ‘gambling’

in a negative way stating that “the competitions where success

depends on substantial degree of skill are not gambling”.

According to it “gambling in a nutshell is payment of a prize for a

chance to win a prize”. Our Court has also tried to give a

definition of the term ‘gambling’ as “any game that is played for

money, wager or stake or in other words played risking money or

something of value for a chance to win a prize is gambling”.

(Jarar Ullah vs. Bangladesh, 66 DLR-380, Para-22).

4.5 According to a New York Penal Law, a person is said to be

involved in gambling when he stakes or risks something or value

upon the outcome of a contest of chance or future contingent

event not under his control or influence, upon an agreement or

understanding that he will receive something of value in the

event of a certain outcome (New York Penal Law, Section

225.00 (2). Professor Nelson Rose, one of the worlds leading

experts on gambling and gambling laws, has classified three

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basic elements of gambling, such as: (a) consideration, (b)

chance and (c) price [ see Nelson Rose, “Gambling and the Law:

Is poker-like chess a game of skill?” dated 10.10.2018].

Therefore, according to him, absence of any of the above three

elements will not constitute a game as gambling. As for example,

if in a party all the guests are given free coupons or coins to play

black jack (known as Twenty-one) or roulette (a casino game), it

could not constitute a gambling as one of the essential elements,

‘consideration’, is missing.

4.6 Therefore, it appears from the above definitions that the basic

elements of gambling will be met if it is found that the money or

some valuable is at stake to win some valuable or money on the

contingency of an event which dominantly or substantially

depends on luck and not on skill. The game of gambling is

different from other sports in the said very elements in that in a

normal sports like cricket or football, though the players will gain

certain prize or valuable if they win, but that does not depend on

the contingency of an event which dominantly depends on luck.

Rather, the said contingency or outcome dominantly depends on

their skill of playing cricket or football. On the other hand, when

an individual plays three cards, crash cards, flush, housie etc.,

putting some money or valuable on stake, the contingency of

winning a prize or valuables dominantly depends on their luck,

not on skill. Yes, the gamblers also need some skill, but that is

not dominant. Rather, the luck is dominant. Of course, there are

some card games wherein the contingency of winning

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dominantly depends on skill and they may not come within the

definition of gambling. We are not worried about them. There is

some disagreement about whether raffle-draw, which is popular

in picnics, should be included in the definition of gambling. The

most common and sound opinion is that it depends on the

intention. If a person receives a raffle ticket as a “door prize” or

side-product of attending an event or purchasing a product from

shopping mall etc. without paying additional money or

specifically attending in order to “win,” then it is more of a

promotional gift and as such not gambling, the considerations

being given dominantly for attending picnics or for purchasing

products. In such cases, stake is without any consideration. On

the other hand, as admitted by learned advocate Mr. Ruhul

Quddus in the course of hearing that winning a prize or valuables

in housie, three cards, flush etc, which are commonly played in

Dhaka Club and other similar clubs in exchange for money and

in those cases, money is put at stake (Housie tickets/coupons

are sold to the members for playing housie followed by dinner

and/or cultural programs), dominantly depends on luck of

individual player. Therefore, they are not skill-based games,

rather they are luck-based games and as such, according to the

above definitions, the said games fall within the mischief of

‘gambling’.

4.7 Gambling is prohibited in Islam. Quran often condemns gambling

and alcohol together in the same verse recognizing that they

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destroy personal and family lives. Some such verses from Quran

are given below:

“They ask you [Muhammad] concerning wine and

gambling. Say; ‘In them is great sin, and some profit, for

men; but the sin is greater than the profit.’... Thus does

Allah Make clear to you His Signs, in order that you may

consider” (Quran 2:219).

“O you who believe! Intoxicants and gambling, dedication

of stones, and divination by arrows, are an abomination of

Satan’s handwork. Eschew such abomination, that you

may prosper” (Quran 5:90).

“Satan’s plan is to excite enmity and hatred between you,

with intoxicants and gambling, and hinder you from the

remembrance of Allah, and from prayer. Will you not then

abstain?” (Quran 5:91)

4.8 The history of gambling in our subcontinent may be traced back

to ancient days, and even in those days the gambling was

condemned largely. While examining such history in State of

Mombay v. R.M.D Chamarbaugwala, AIR 1957 SC 699 at para

46, a constitution bench of the Supreme Court of India has

mentioned that the presence of gambling may be found even in

the days of Mahabharat where one of the clans (Pandavas) had

wagered away their chattels, Kingdom and family in a game of

dice. In the same case, it condemned gambling in that it

encourages a spirit of reckless propensity for making easy given

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by lot or chance. Some Courts of United States of America have

also condemned gambling saying that the plague of the

gambling is widespread and has caused huge disasters [see

Phalen Vs. Virginia, 12 LED-1030”]. However, in condemning

gambling in such words, the Superior Courts of this sub-

continent as well as the Courts in America, where gambling is

played widely in different names, have always tried to

differentiate between gambling and the games of skill and have

held that the outcome of games which depend mostly on skill do

not come within the mischief of gambling. Therefore, the present

position of the Indian Supreme Court is that it becomes gambling

if it is played for stakes. This position has not yet been disturbed

by the Indian Supreme Court.

4.9 As stated above, a division bench of this Court has in the

meantime examined this issue in Jafar Ullah Vs. Bangladesh,

66 DLR-380, wherein the petitioner came up before this Court

for getting an approval so that he can arrange or hold different

types of gambling named Nipun Khela, 1-10, 1-8, chorchori, dice,

housie etc. at a premises that he has taken lease from

Bangladesh Muktijoddha Welfare Club in Naogaon. A division

bench of this Court then declared such games to be not

permitted by law by making reference to the Public Gambling

Act, 1867. In the said decision, their lordships have examined

the definition of the term ‘gaming’ and ‘common gaming house’

as defined by the said Act and finally concluded that the said

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games, namely Nipun Khela including 1-10, 1-8, Dice and

Housie are various forms of gambling. According to the said

bench, the words gambling and gaming appearing in the Public

Gambling Act, 1867 are synonymous by connotation. It was

further held therein that whoever found present in the common

gaming house for the purpose of gaming, no mater playing for

money, wager, stake or otherwise, is punishable under the said

Act. It was further held by this Court that owning, keeping or

having charge of common gaming house, as contemplated under

Section 3 of the Public Gambling Act, 1867, is an offence and

punishable under the said section of law.

4.10 However, the main trust of the submissions of Mr. Quddus,

learned advocate appearing for the Dhaka Club Ltd., is that the

Public Gambling Act, 1867 has itself excluded metropolitan area

from the application of the provisions of the said Act and as such

the prohibition or mischief provided by the said Act as well as the

decision of this Court in the Jafar Ullah’s case will not be

applicable to the Dhaka Club Ltd. and other similar Clubs. After

independence of Bangladesh, the Public Gambling act, 1867

was applicable to whole of Bangladesh. However, Metropolitan

areas were excluded from such application only after the brutal

killing of our father of the nation Bangabandhu Sheikh Mujibur

Rahman. The military government, after 1975, has given special

privilege to elites of metropolitan area in a reprehensible

discriminatory way by amending section 1 of the Public

Gambling Act, 1867. In this regard, we have also examined the

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relevant provisions of Dhaka Metropolitan Police Ordinance,

1976, the Chittagong Metropolitan Police Ordinance, 1978 and

other similar Ordinances promulgated by the said military

government. It appears that all the legislations creating such

metropolitans have not entirely validated gambling in

metropolitan area. Section 92 of the DMP Ordinance 1976

provides that whoever assembles with others in street or public

place for the purpose of gambling or wagering or joins any such

assembly shall be punishable with fine which may extend to one

hundred taka. Similar provision has been made in Section 94 of

the CMP Ordinance, 1978. Therefore, it appears that gambling

has also been prohibited by this Metropolitan Ordinances either

in a street or public places though the punishment has been

made very nominal, namely one hundred taka fine only.

4.11 Now the question is whether the Dhaka Club Ltd. or similar other

clubs in Metropolitan area, will come within the definition of the

term “Public Place”. The term ‘public place’ has been defined by

Section 2(l) of the said Ordinances, which is quoted below:

“public place” includes a bank of a river or canal, a jetty,

public building or monument and the precincts thereof, and

all places accessible to the public for drawing water,

washing or bathing or for the purpose of recreation;”

(Underlines supplied)

It appears from the above quoted definition that all places

accessible to the public for various reasons including for the

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purpose of recreation comes within the definition of the term

‘public place’.

4.12 It has not been denied by the Dhaka Clubs or the learned

advocate appearing for it that the Dhaka Club is accessible to its

all members and the guests of those members. Similar

accessibility is present in other such clubs in the metropolitan

areas as well. It is also not denied by the learned advocate that

the members of the said club and their guests attend those clubs

for various reasons including for the purpose of recreation.

Therefore, it cannot be said that the said members of the said

club, or other clubs, as well as their guests do not come within

the preview of the definition of ‘public’ and as such it cannot be

said that the said public do not have access to those clubs for

the purpose of recreation. This being so, it cannot be said that

this prohibition as provided by Section 92 of the DMP Ordinance,

1976 and Section 94 of the CMP Ordinance, 1978 and other

similar prohibition as provided by other Metropolitan Ordinances

do not have any application to the said clubs including Dhaka

Club Ltd. It is true that the penalty provided by the said provision

is very minimum comparing to the financial status of the

members of those clubs. However, it cannot be denied that such

assemblies for the purpose of gambling and wagering in those

places are prohibited by law. Provision of minimum or very

nominal penalty does not make an offence or behaviour

acceptable to the law enforcing agencies, particularly when

gambling is clearly prohibited by Article 18(2) of the Constitution

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of the People’s Republic of Bangladesh and it has cast obligation

on the State to “adopt effective measures to prevent prostitution

and gambling”.

4.13 Considering the recent policy of the government and stand taken

by it against casinos and gamblings taking place in some clubs

in different Metropolitans and other areas, we are of the view that

the punishment provided for gambling should be increased by

way of amendment in those provisions. However, in so far as the

issues raised by the parties in this writ petition is concerned, we

have no hesitation to declare that gambling is an offence in the

eye of law in this country and it is prohibited not only by the

Public Gambling Act, 1867, but also by the relevant provisions of

different Metropolitan Ordinances including Dhaka Metropolitan

Police Ordinance, 1976 and Chittagong Metropolitan Police

Ordinance, 1978. Therefore, just because the members of those

clubs are from elite part of the society and they have huge

financial resources, they cannot be treated differently from other

poor people who are in different places of Bangladesh (beyond

Metropolitan area) are being arrested or prevented by police

when they want to play gambling for their recreation. Since the

law has prohibited gambling for the poor and rich irrespective of

their social status, the same has to be applied to both equally in

order for keeping the activities of law enforcing agencies in line

with the provisions of Article 27 of the Constitution of the

People’s Republic of Bangladesh. Therefore, since the three

cards, flash, housie etc., which are commonly played in the clubs

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of respondent Nos. 13-26 and other clubs or premises in

Metropolitan areas or the areas beyond the metropolitan, the

people organizing such games and/or owning and occupying

those premises and the people who are playing those games

and keeping the instruments of those games in their premises

are committing offence repeatedly. However, if the said clubs are

allowing any sort of games like chess, carom or indoor cricket,

indoor footballs etc., the outcome of which dominantly depend on

skill and not on luck, they may be allowed to play such games in

those premises. In so far as three cards, flash, Dice, Housie,

Nipun Khela 1-10, 1-8 Charchari, Poker etc. are concerned,

anyone found responsible in owning any places where such

games are allowed to play and any one found playing such

games and/or keeping instruments of such games in those

premises, should be dealt with by the law enforcing agencies

immediately. Any games, the outcome of which predominantly

depend on luck (except government authorized lottery, see sec.

294 A Penal Code, 1860) and not on skill, are prohibited games

and as such the government and the law enforcing agencies

(respondent Nos.1-12) concerned are obliged by the Constitution

as well as the relevant laws of the land to take immediate actions

against them for seizure of those instruments as well as

preventing those games from taking place. The concerned clubs

including Dhaka Club also cannot allow such games in their

premises under any means on the pretext of amusement or

recreation.

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4.14 With the above observation and finding, the Rule in this writ

petition is made absolute. Accordingly, the orders of the Court

are as follows:

1) The above mentioned games, namely Nipun Khela 1-

10, 1-8 Charchari, Dice, Housie, Three cards, Flash,

Poker and any other games (except government

authorized lottery) played physically, electronically or by

any other instruments, the outcome of which

predominantly depend on luck and not on skill, are

gambling. Accordingly, owning, occupying any place of

such games and any instruments and allowing such

games to take place, is an offence under the law of the

land. However, if the above games are played without

any money or valuables being put at stake (which is

admittedly not the case in those clubs), they may be

allowed to play such games for the purpose of

amusement.

2) Keeping any place or office for drawing lottery, not

being authorized by government, is an offence

punishable under Section 294 A of the Penal Code,

1860.

3) Law enforcing agencies, including respondent No.1 to

12, are directed to take immediate actions for seizure of

those places (Dhaka Clubs and other similar Clubs),

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instruments of games as well as for preventing people

from playing such games in those clubs and other clubs

in the Metropolitans and beyond Metropolitans.

4) Raffle draws/coupons given as a side product of door-

tickets for attending picnics or to purchase any products

from shopping malls, the dominant intention/purpose in

those cases being to attend picnic or to purchase

products, do not come within the mischief of gambling.

5) It is expected that the government will think of seriously

about amendment of the relevant provisions of law so

that the prohibition of gambling applies equally to all

people in Bangladesh irrespective of their financial and

social status. The government should also think of

seriously about increasing the punishment provided for

gambling as the present punishments are very minimum

considering the financial and other status of the people

who are commonly engaged in those games.

6) Let a copy of this judgment and order be sent to the

government and Inspector General of Police, Police

Commissioners, Rapid Action Battalion (RAB), Deputy

Commissioners (respondent No.1-12) for taking actions

immediately.

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7) Let a copy of this judgment and orders be also sent to

the Cabinet Secretary of Bangladesh Government for

dissemination of the information regarding this judgment

to the concerned government officials of the country.

………………………. (Sheikh Hassan Arif,J)

I agree. …….……………………………….

(Md. Mahmud Hassan Talukder, J)

W.P. No. 15090 of 2016 - cdn.jagonews24.com6 W.P. No. 15090 of 2016 (Judgment dated 10.02.2020)...

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